Review of Efficiency in Criminal Proceedings

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1 Review of Efficiency in Criminal Proceedings by The Rt Hon Sir Brian Leveson President of the Queen s Bench Division January 2015

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3 Contents Contents 1 Introduction Terms of reference Methodology The changing landscape The CJS Common Platform 5 2 Overarching Principles of the Review Getting it Right First Time Case Ownership Duty of Direct Engagement Consistent judicial case management 12 3 The role of IT Video and Audio Hearings: the default position CJS Common Platform Digital Presentation of Evidence Encouraging digital evidence gathering 18 4 Appropriate Allocation: the right cases for the Crown Court Charging Decisions Allocation Decisions Recommendations 25 5 The Magistrates Court Transforming Summary Justice ( TSJ ) Supporting the TSJ principles Court process begins at point of charge Fast track cases Exploiting the new online Legal Aid Agency grant process Case management and progression Case progression before first hearing Case progression at the first hearing Case progression officers The role of the JLA Disclosure in the Magistrates Court Assisting the EGP process - The EGP process in the Magistrates Court 36

4 Contents 6 Listing The Criminal Practice Direction Amendment Number 2, The impact of the current approach Warned Lists/ floaters / fixed floaters /backup fixtures/multiple listing Establishing an environment for single/fixed listing Listing cases thematically within the Magistrates Courts Increasing flexibility in listing Listing cases for a sentence hearing Raising the standards to the best performing areas and sharing good practice in listing 44 7 The Crown Court: pre-trial National Early Guilty Plea ( EGP ) scheme: supporting the principles Otiose trial and unrealistic timeframe The proportion of cracked/ineffective trials Value of the PCMH Legal Aid implications Reward for significant negotiations Case Progression Role: Enforcing the Criminal Procedure Rules Case progression: a new approach The problem of sanctions 53 8 The Crown Court: trial Maximising available time in the Crown Court Prisoners arriving on time Court sitting hours & flexible court arrangements Evidence: Presentation Expert evidence ABE Evidence Use of remote witness links/video testimony The culture of advocacy Ground Rules approach Time Management of cross-examination and speeches Routes to Verdict and Summing up by reference to issues Background Experience of other Jurisdictions 75

5 Contents Impact on Jurors Impact on trial length Recommendations 79 9 Transition The Police and CPS HMCTS NOMS Further Observations: Out of Scope Appeals in cases from summary jurisdiction Changes to the right to elect trial by jury Changes to indictable only offences Defendant s option for trial by Judge alone Serious and complex frauds A Unified Criminal Court Technical Changes Is there a need for an indictment? Allocation Decisions Consolidation of Sentencing Law and Practice Summary of Recommendations Appendices I Appendix A - List of contributors Review Groups Appendix B - List of contributors - Individuals Appendix C - List of Contributors - Organisations Appendix D - Sources Appendix E - The National Early Guilty Plea Scheme I VII XVI XVIII XX 13 Glossary XXIV

6 Introduction 1 Introduction 1.1 Terms of reference 1. In February 2014, after discussion with the Lord Chancellor, the Lord Chief Justice asked me to conduct a review into the efficiency of criminal proceedings. It has been conducted against the background of the decreasing public funding that is available not only for Her Majesty s Courts and Tribunals Service ( HMCTS ) but also for the police, the Crown Prosecution Service ( CPS ), the National Offender Management Service ( NOMS ) and last, but by no means least, legal aid. The Review was intended to stand alongside that conducted by Sir Bill Jeffrey looking into how criminal defendants are given independent legal representation in the courts of England and Wales. Its purpose is to demonstrate ways in which, consistent with the interests of justice, it might be possible to streamline the disposal of criminal cases thereby reducing the cost of criminal proceedings for all public bodies. A further aim is to ensure that proposed reductions in criminal legal aid can be justified on the basis that the rate of remuneration will not be affected: less work will be required to be put into each case because considerable waste and inefficiency in the system (which takes up the time of criminal lawyers and thus costs money) has been eliminated. 2. The terms of reference of the Review were finalised on 4 April 2014 and are in these terms: While taking into account - a. current initiatives to improve the efficiency and speed of the criminal justice system (in particular recent changes relating to the early guilty plea scheme); b. the need for robust case management; c. recommendations made in previous reviews of the criminal justice system, including those not implemented at the time; and d. Government reforms to the criminal justice system; 1. Review current practice and procedures from charge to conviction or acquittal, with a particular focus on pre-trial hearings and recommend ways in which such procedures could be: 1

7 Introduction a. further reduced or streamlined; b. improved with the use of technology both to minimise the number of such hearings or, alternatively, conducted (whether by telephone, or internet based video solutions) without requiring the attendance of advocates. 2. Review the Criminal Procedure Rules to ensure that: a. maximum efficiency is required from every participant within the system; and b. any changes proposed are fully supported by the Rules. 3. Report to the Lord Chief Justice within 9 months. The report will be published in due course. 3. A further limitation placed on the Review concerned the mechanism whereby change could be effected. Although I am specifically tasked with reviewing the Criminal Procedure Rules and the practice of the courts, its purpose is not to investigate or recommend legislative change. In any event, that limitation is a necessary consequence of the time frame within which I have been required to operate: what I have done is not, and never could it take on the form or detailed exposition to be expected of, a Royal Commission; neither is it the type of Review that was conducted by Lord Justice Auld in Having said that, I have not ignored legislative possibilities. Chapter 10 identifies possible approaches that would require legislation: these have been raised and debated over the years and I do no more than suggest that they should be revisited. How far any is taken depends on policy decisions upon which, at least in part, it is not appropriate for a serving Judge who has not specifically been asked to review legislation to express a concluded view. A Royal Commission could be appointed to consider these issues but, inevitably, that would lead to considerable delay and, in any event, many of the issues have been debated over many years. Both that decision and the possible solutions are initially for the executive and then, if taken forward, for the legislature. 4. As a result, I have focussed on changes to procedure which can be achieved without requiring legislation but which make better use of the technological and other advances. All are designed to streamline the way in which the business of the criminal courts is conducted without losing sight of the interests of justice. Thus, rather than seeking to bolt procedures onto a system initially designed for the 19 th century (as has been the practice for the last 50 years), I have tried to identify ways in which our current procedures can be adapted to make the best use of the skills, resources, IT and systems available. 1 Review of the Criminal Courts of England and Wales by The Rt. Hon Lord Justice Auld (HMSO, October 2001). 2

8 Introduction 5. When I was the Senior Presiding Judge for England and Wales, I was involved in the promulgation of a programme to improve the efficiency of the Magistrates Courts. Its aim was to reduce the number of hearings and to improve timeliness: it was known as CJSSS ( Criminal Justice: Simple, Speedy, Summary ) 2. It was successful in improving performance 3 although the effectiveness of some of those improvements has since diminished. The initiatives needed refreshing in a new programme promoted by the present Senior Presiding Judge, Transforming Summary Justice 4. The most significant lesson learnt from these programmes has been that the criminal justice system is not, in reality, a single system: the police, the CPS, the defence community, HMCTS, the judiciary, the probation service and NOMS (to say nothing of the Ministry of Justice ( MoJ ) and the Home Office) all have different priorities and different financial imperatives with performance indicators (where they exist) that are not aligned. The only way of improving the end to end operation is to bring the different participants in these systems together to debate and agree on initiatives to improve the whole. 1.2 Methodology 6. To that end, I sought to draw into this Review representatives of all those primarily involved in the delivery of criminal justice, inviting those representatives to include whomsoever they wished in the formulation of ideas that might improve the throughput of work, while at the same time reflecting the imperatives of all (and not just their own organisation). The names of those involved in the Review group (and their organisations) are set out in Appendix A; we met broadly on a monthly basis and I am grateful to all for the effort that they (and their respective organisations) put into the exercise. I have also been greatly assisted by two civil servants seconded full time from HMCTS and the MoJ respectively: Enzo Riglia has been involved in transformational change from the perspective of HMCTS for many years and David Robinson has considerable experience as a criminal practitioner who, more recently, has been Legal Advisor to the Criminal Cases Review Commission. Both have devoted considerable time and energy to the Review. In addition, members of the Judicial Office and researchers from the Law Commission have provided valuable input In order to analyse the process from charge to disposal, three sub-groups were set up. Professor David Ormerod QC, a Law Commissioner, chaired a sub-group to deal with processes and procedure from charge to trial. Lord Justice Fulford chaired a sub-group on IT and listing and Mr Justice Openshaw chaired the final sub-group on the conduct of trials. Members of the Review group either served on the sub-groups or their organisations nominated others to do so: their names are also set out in Appendix A. In that way, I have sought to obtain the widest range of views. 2 Delivering Simple, Speedy, Summary Justice, Department of Constitutional Affairs, July 2006, DCA 37/06 3 E.g. Champness, A Criminal Justice Simple Speedy Summary six months on (2008) 64(6) Magistrate Transforming the CJS A Strategy and Action Plan, MoJ, June 2013, Cm 8658; Transforming the CJS an Implementation Update, MoJ, July 2014, Cm From the Judicial Office, this includes Amanda Jeffrey, Claire Fielder, Sophie Marlow, Sarah Carnegie and Ben Yallop; from the Law Commission, Vincent Scully, Amy Taylor and Sarah Taylor. 3

9 Introduction 8. In addition, various other steps have been taken to obtain views. The Bar set up a Criminal Justice Review Group chaired by His Honour Geoffrey Rivlin Q.C. which has collated a response from the Bar. The Law Society conducted a series of regional events to seek views and hosted an evening when these were discussed. I have met others with a particular interest in the criminal justice system (such as the Victims Commissioner). Finally, the website sought views from members of the public or other interested parties. A full list of those who contributed is set out at Appendix B. 9. It is important to underline the limitations of this Review. First, it is restricted by its terms of reference to focussing on changes which can be implemented without legislation. This restriction is significant: given the decades of continued interest in improving efficiency any non-legislative changes that could easily have been made would, by now, have occurred. Secondly, there has been no budget for this exercise, although the services of the two civil servants have been provided at the cost of HMCTS and the MoJ. For that reason and others, there has been no time or little opportunity for evidence gathering. With one exception, reliance has had to be placed on the very wide experience of all members of the Review group, the information available from the statistics maintained by the MoJ and the wide-ranging consultation (which has included such research as has been possible from other jurisdictions, including the Review presently being conducted in Scotland). The exception has been the invaluable and extensive assistance that I have received, pro bono, from Professor Cheryl Thomas, Professor of Judicial Studies in the Faculty of Laws at University College, London. Everyone (including Professor Thomas) has given their time and energy free of charge and I am extremely grateful to all. 10. There is a further very important limitation to this Review. There is no quantitative analysis of the effect of the changes which are proposed. Within the constraints of the Review, it has not been possible to calculate how much will be saved by any participant in the criminal justice system by any single change, or combination of changes, to the way in which criminal cases are conducted. Neither has it been possible to identify the extent to which, taken individually or together, any proposed change will serve to provide a better rate of remuneration for those conducting publicly funded criminal work although common sense demonstrates that if the work can be conducted with less waste and more effective use of time, rate of remuneration must be improved. 11. It is for the executive to determine how much funding will be available for the police, the CPS, those undertaking criminal defence on legal aid, HMCTS or NOMS and how the criminal justice system fares as a priority with other demands for public funds, such as health or education. Given that the origin of the Review has been a crisis over remuneration for legal professionals, however, it must be borne in mind that a criminal justice system that is professionally staffed and effective is critical to our democratic society. In that regard, I can do no better than repeat what I said in R v Crawley [2014] EWCA Crim 1028 at paragraph 57: The criminal justice system in this country requires the highest quality advocates both to prosecute and to defend those accused of crime: in addition, 4

10 Introduction they are the potential Judges of the future. The better the advocates, the easier it is to concentrate on the real issues in the case, the more expeditious the hearing and the better the prospect of true verdicts according to the evidence. Poor quality advocates fail to take points of potential significance, or take them badly, leading to confusion and, in turn, appeals and, even more serious, leading to potential miscarriages of justice. We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work, developing their skills from the straightforward work until they are able to undertake the most complex. 1.3 The changing landscape 12. The criminal justice system is presently crowded with plans for future development. There are currently in the region of a dozen pilots, initiatives and schemes operating in England & Wales 6. Each has been created and implemented in the desire to improve one or more aspects of the operation of the way in which criminal justice is delivered. 13. Compounding the above problem is that the landscape is subject to frequent change. Between 1989 and 2009, Parliament approved over 100 Criminal Justice Bills and more than 4,000 criminal offences were added to the statute book 7. From an historical context, the figure is more startling: Halsbury s Statutes of England & Wales has five volumes devoted to criminal laws that (however old they may be) are still currently in force. Volume One covers the law created in the 637 years between 1351 and 1988, and is 1,249 pages long. Volumes Two to Five cover the laws created in the 24 years between 1989 and 2013 and are no less than 4,921 pages long. The 2013 Supplement adds a further 200 pages. So, more than four times as many pages were needed in Halsbury s Statutes to cover laws created in the 24 years between 1989 and 2013 than were needed to cover the laws created in the 637 years prior to that It is hardly surprising then, given all the above, that the Review encountered what might best be described as transformation exhaustion. 1.4 The CJS Common Platform 15. The work of the criminal justice system currently relies on a combination of long-standing manual processes and aging computer systems that have evolved in a piecemeal fashion over many decades. There is no doubt that to increase the efficiency of the system, we need better, quicker and less costly ways of creating, filing and distributing documents; easier and more 6 Including, for example, the Early Guilty Plea ( EGP ) Scheme, Transforming Summary Justice ( TSJ ) and the CJS Efficiency Programme. 7 Law Commission Consultation Paper, 2010 paragraph See further the MoJ s revised figures for new offence creation , but note that their methodology is highly criticised by Leverick & Chalmers, who have their own data for two sample years of and : Tracking the Creation of Criminal Offences, 2013, Crim LR

11 Introduction flexible ways of enabling all those involved in the process to communicate effectively with one another. We need to reduce the number of hearings at which the participants have to attend in person. It is critical that we avoid duplication of work (such as re-keying the same information) and that we reduce administrative errors. Well-constructed IT has the potential to overcome most of these challenges. 16. One essential element of the developing landscape in this context is the CJS Common Platform. It has the potential to make such fundamental changes that it is worth explaining at this early stage. It will provide a comprehensive, online case-management system. At the very outset of criminal proceedings, following charge, the police will make all the relevant documentation available via a digital case file, to which the Crown Prosecution Service will be provided access. Any prosecution material in the proceedings will only need to be entered onto the system once (thereby avoiding any re-typing/re-keying). The case will be managed entirely online, with the various participants having access to the case-management system at the different stages in the process when they become engaged. The CPS will create the case file online. This will involve preparing the papers in a digital format that will reflect the bundles with which the courts are currently used to working, and additional material will slot in at the appropriate place in the file. The parties and the judiciary will be able to work on the electronic papers, privately highlighting, editing, and making comments. 17. Case progression will take place online, and all the decisions in the case will be made and communicated in this way. The CPS will give electronic access to the case papers (the used and disclosed materials) to all the parties and participants who have a legitimate business need. Paper processes will be effectively eliminated. It will be critical for this new system that case information is provided in a comprehensible format that facilitates electronic working in court and that the payment system, to the extent that it is based on a page count, takes into account this new way of working. These changes will profoundly affect the way that work is undertaken at each court centre, because the materials will be digitally managed. The parties and participants will file their documents electronically (statements, exhibits, lists of previous convictions, correspondence, pre-sentence and other reports, Plea and Case Management Forms (PCMH) forms, etc.), and applications and written submissions will be filed online. 18. At the relevant points in time, the Judge/list officer/case progression officer will each be automatically alerted when a new application or submission is received, and he or she will be able to decide how it is to be resolved: by way of an in-court hearing, a remote hearing or an electronic exchange of written submissions, with the Judge communicating his or her decision via a written message (including any reasons). The entirety of the documentation in the case will be filed in an electronic store that will be accessible to those involved in the case whose role entitles them to access the information. The parties will present their cases digitally in court, and it is proposed that the information will be made accessible to the jury (on tablets) in this format. 19. Whilst the development of the processes that are necessary for this radical change is a complicated 6

12 Introduction undertaking, the financial savings that will be brought about by eliminating paper and the increase in efficiency should be very considerable. Having said that, it must be recognised that there may be a consequential movement of some cost on to defence lawyers (if, for example, the defendant cannot access the statements in his case online and needs a hard copy). That possibility will have to be recognised in any negotiation as to remuneration. 20. Listing will be undertaken by way of a digital diary, and although the Resident Judge, assisted by the list officer, will retain complete control over this process, it will be possible for standard cases to be allocated automatically in the diary on a provisional basis, subject to approval or change by the list officer 9. This will enable any Judge and the relevant court officials, at a glance, to assess when cases can be listed. This system should assist in enabling cases to be transferred between courts in order to ensure that best use is made of each court centre. This may lead to an enhanced or renewed role for regional list officers acting on the directions of the Presiding Judges. 9 A similar approach is envisaged for the Magistrates Court. 7

13 Overarching Principles of the Review 2 Overarching Principles of the Review 21. There have been many attempts over recent years to review the operation of the criminal justice system, not least by the Royal Commission on Criminal Justice 10 and Review of the Criminal Courts of England and Wales (2001) conducted by Lord Justice Auld 11. The recommendations of these reviews (to the extent not already implemented) provide much material which is still relevant today (although a number of the recommendations would require legislation). This Review has, in some instances, developed some of those earlier recommendations to reflect the new landscape in which we operate: particularly with improved and more widely accessible IT, and in the face of financial challenges that have to be faced. 22. There must, of course, be an irreducible minimum of funding for the police, the CPS, defence lawyers, the courts and NOMS below which the criminal justice system cannot operate. It is, however, necessary to ensure that the scarce resources are not wasted or used inefficiently. Demands on public funds must be kept to a minimum while, at the same time, ensuring that the delivery of justice is effective and meets the highest standards that any democratic society is entitled to expect. In order to achieve this objective, remuneration for those engaged in the system must be commensurate with the skill and expertise which has to be deployed, otherwise the highest calibre individuals will not be prepared to work in the field and standards will inevitably drop. 23. Although reference is continually made to the criminal justice system, as I have said, there is no such single system: rather, there are a series of criminal justice participants each of whom has their own obligations and priorities, and operates within their own financial constraints. The almost inevitable consequence of these participants each having to address their own issues is that they have little, or significantly less, regard to the needs and obligations of other participants. As was demonstrated during the previous attempts to improve efficiency in the Magistrates Courts (CJSSS), only if all participants are conscious of the needs of others can a system be devised which has the potential to maximise efficiency. 24. The underlying approach to this Review has been to consider ways of encouraging better communication between the agencies involved in criminal justice, encouraging better communication between the parties to criminal litigation and maximising the opportunities to improve effectiveness and efficiency with the use of modern IT. From first to last, it also focuses on improving the prospects of a fair and just trial, including identification of the issues which will lead to the conviction of the guilty and the acquittal of the innocent 12. To that end, it will also be important to promote collection of data which is targeted at monitoring effectiveness and efficiency. This approach leads to a number of themes as to the way forward which I refer to as 10 [1993] Cm Review of the Criminal Courts of England and Wales by The Rt. Hon Lord Justice Auld (HMSO, October 2001). 12 CrimPR, C1.1. 8

14 Overarching Principles of the Review the overarching principles of this Review. 2.1 Getting it Right First Time 25. Thus, the first overarching principle must be Getting it Right First Time. This is particularly important for the police and the CPS who are the gatekeepers of the entry into the criminal justice process. If they make appropriate charging decisions, based on fair appraisal of sufficient evidence, with proportionate disclosure of material to the defence, considerable delay can be eradicated 13. On that basis, defence lawyers can take proper instructions and progress expeditiously: furthermore, it will be incumbent upon them to do so. If, on the other hand, a case is under-charged (or over-charged) or there is no proportionate disclosure of material, delay (and additional cost) will be inevitable. In my view, getting it right first time is the absolute priority of any improvement to efficiency and it must be recognised that this will impose additional burdens on the police and CPS: to ensure that they are prepared to accept those burdens, it is equally critical that all other participants do what they can to minimise unnecessary costs. 2.2 Case Ownership 26. Allied to Getting it Right First Time is the second overarching principle Case Ownership. For each case, in the police, the CPS and for the defence, to maximise the opportunities for case management, there must be one person who is (and is identified to be) responsible for the conduct of the case. Attempts to name the advocate have previously foundered because the CPS and/or the defence have only decided to instruct independent counsel at the last moment (perhaps because a case that was an anticipated guilty plea becomes a trial), or because the advocate is not available for the PCMH or mention which is then conducted by someone without any knowledge or ownership of the case, or the issues involved in it. In civil cases, the same advocate or solicitor and counsel will be responsible for the advice, the pleadings and usually (but not invariably) any interlocutory hearing or trial: there is no reason why the same should not be so for criminal cases, acknowledging and taking account of the fact that criminal advocates spend many working days in court. 27. Case ownership ought to be helped in the future if the significance of geographical boundaries are reconsidered and much greater use of video technology promoted. Although there may still be various hands on the case, overarching case ownership and responsibility can be maintained by technology enabled updates and tasks, and by remote hearings. If the use of video links is to be expanded, a new operating model which is not confined to the current tiers of jurisdiction will ultimately be needed. 28. Tied to improved case ownership, Legal Aid must reward efficiency and avoid perverse incentives. 13 It is worth mentioning that this principle applies to decisions whether to proceed by arrest and charge or by voluntary attendance and postal requisition. 9

15 Overarching Principles of the Review Thus, the current legal aid arrangements make it highly attractive for firms to retain a case until the PCMH. The role of the instructed advocate under the advocates graduated fee scheme ( AGFS ) can be of financial benefit to them. 29. Since 2007, the instructed advocate receives all the fees under the AGFS and then pays the appropriate fees to all other advocates who appeared on the case. The net effect of the Legal Aid regulations 14 is that the Instructed advocate is the advocate who appears at the PCMH. Very often that is the in-house advocate who thus becomes the instructed advocate and many firms will not instruct counsel for the PCMH for this reason. It is clear why: the firm will receive the whole of the advocate s fees for the case, even where counsel is instructed for every subsequent hearing including trial and sentence. At best, this means that the firm gets the benefit of the cash flow and at worst it can be a means of obtaining what is, in fact, a referral fee by the simple expedient of withholding a proportion of the fee intended for the advocate. 30. When this occurs, it means trial counsel is rarely instructed before the trial, so decisions are being made at the PCMH with which trial counsel may later disagree. Second, the instructed advocate thereafter has little to do with the conduct of the case; the conduct is always the responsibility of trial counsel. If the instructed advocate notion was intended to confer case ownership, it does not in practice do so. 31. In order for case ownership to work in practice, the Legal Aid Agency should change the definition of instructed advocate to the advocate who conducts the main hearing usually the trial, but frequently the sentence. This would not represent a substantial change. In appeals, committals for sentence and breach proceedings, the Bar Council, Law Society and Solicitors Association of Higher Court Advocates have agreed that the instructed advocate should be deemed to be the person who attends the main hearing, with any other advocate being regarded as a substitute advocate. 32. Further to this Review process, I understand that the Legal Aid Agency is now currently giving consideration to amending the definition of Instructed Advocate in the Criminal Legal Aid (Remuneration) Regulations Duty of Direct Engagement 33. The third overarching principle will flow almost directly from case ownership: the Criminal Procedure Rules should place a duty of direct engagement between identified representatives who have case ownership responsibilities. In a civil case, it would be inconceivable that the lawyers for the parties would not voluntarily engage with each other in an effort to narrow issues and, potentially, settle the dispute. Neither would such discussions 14 The Criminal Legal Aid (Remuneration) Regulations (HMSO, 2013). 15 The proposal being that the instructed advocate is the one conducting the main hearing not simply the PCMH. 10

16 Overarching Principles of the Review necessarily involve the court: judicial resolution of a problem would only arise in the event that agreement was not possible. Of course, if nobody owns the case or if decisions as to who is to conduct it at trial have been deferred this type of engagement will not be possible. 34. Case ownership, on the other hand, can lead to greater collaborative working between the parties involved. What matters is early effective engagement between the right people. That does not have to be face to face; and telephone conversations can resolve a great deal but they require a name and an address (or direct telephone number) along with a commitment to respond. On the other hand, agreements must be reduced into writing so as to avoid all confusion and there must be a secure system to facilitate more effective communication and to ensure that there is a record of the position of the parties. In that way, consideration can be given to all relevant matters at the earliest opportunity before the first hearing or in the Crown Court before the PCMH is listed: this can include an agenda for the trial which can be communicated to the court. The Criminal Procedure Rules need to make clear that the parties are under a duty to engage at the first available opportunity and certainly well before any first hearing. There should be an expectation that the identified case representatives will have communicated in advance of the first hearing. If they have not, they should have to explain to the court, at that hearing, why they have failed to do so. 35. When the CJS Common Platform has been established, it will provide a system similar to communication between the parties that will ensure there is a readily available record of what occurred. As discussed elsewhere, Judges on occasion currently receive submissions and issue rulings in this way. Furthermore, once audio and video hearings are established, there will be a digital record similar to that provided by the DARTS system I must mention one concern raised during the course of my Review, namely, whether the existing arrangement for the use of secure by defence practitioners is acceptable. A number of defence practitioners complained that the secure system cjsm is not fit for purpose. They identified that it is difficult to sign up for, cumbersome and slow in operation and has a very small capacity. Others explained that this may be a technical issue of a failure by some to integrate Microsoft Exchange server with cjsm. I understand from practitioners that some simple steps to render the systems compatible alleviate these difficulties immediately. Suffice to say that until the CJS Common Platform is established, it should be a pre-condition that any practitioner wishing to conduct Crown Court litigation should have access to cjsm. 37. Building on the above there should be a presumption that interlocutory matters ought to be concluded without the need for a formal hearing in court. Rather than arrange a mention, by using IT the usual practice should become either to submit short submissions in writing for written resolution by the court or to arrange a hearing at a suitable time online or by 16 I understand that tests are taking place to use conference calls for interlocutory hearings and that it may be possible to use the DARTS system to ensure a comprehensive record is kept of these hearings. Also, the HMCTS Store may be used to retain records of remote or virtual hearings, especially case management meetings. 11

17 Overarching Principles of the Review telephone. The Criminal Procedure Rules (and Practice Directions, as appropriate) should make it clear that there is an obligation on any party to justify the need for an interlocutory hearing to take the form of a formal court hearing with all parties present. With the CJS Common Platform this will be entirely straightforward, as discussed more fully in the next section. 2.4 Consistent judicial case management 38. The Fourth principle is effective and consistent judicial case management. Without creating a docket system (with every case allocated to a Judge), the court must be prepared robustly to manage its work. In the Crown Court, this might require a number of Judges taking on the responsibility of case management but this cannot be seen as a tick-box exercise: see, in particular, the very different approaches to case management evidenced by Professor Penny Darbyshire 17. To that end, all parties must be required to comply with the Criminal Procedure Rules and to work to identify the issues so as to ensure that court time is deployed to maximum effectiveness and efficiency. In the event that a suitable disposal of the case cannot be agreed, this includes ensuring that the necessary evidence is served, disclosure has been undertaken, defence statements are case specific and address the issues, appropriate admissions and summaries are prepared, special measures and evidential issues resolved and witnesses are required only if truly necessary with availability known to the court so as to avoid an ineffective hearing. 39. Looking at the broader picture, to assist the courts in consistent decision-making statistical information should be more readily available, tailored to the needs of the court specifically to assist with allocation and sentencing decisions. Although nothing must be done to impact adversely on the independence of the judiciary, ways must be found to ensure that all members of the judiciary are aware of the way in which their discretionary decisions (as between Magistrates and their local Judges and as between Magistrates and Judges and comparable courts) are exercised differently. I shall return to this issue in particular when discussing allocation although the importance of consistency in approach runs throughout decision making in the criminal courts. 17 [2014] Crim LR

18 The role of IT 3 The role of IT 3.1 Video and Audio Hearings: the default position 40. Until recently, in order to conduct a hearing of any sort, all those involved in the process needed to gather in the same place almost invariably a courtroom in order for submissions to be advanced by the advocates or evidence to be given by witnesses, thereby enabling the Magistrates, Judge or the jury to make a decision. Based on long familiarity, Judges, advocates and the public are entirely used to this process and it is understandable that it may be difficult for many people to envisage a new process that involves the Judge conducting remote hearings. I appreciate that there are competing arguments around the most effective way to undertake remote hearings 18. However, in relation to pre-trial and case management hearings, this process is inefficient and expensive. Such hearings are often essentially administrative in nature and it is unnecessary to gather the participants together in one room to deal with the matters that require resolution, save exceptionally when the interests of justice require it. 41. With appropriate investment in equipment and infrastructure, new technologies are now available which will provide a reliable and high-quality means of dealing with many, but clearly not all, aspects of criminal cases without requiring the parties to travel to court. In various combinations, advocates, police officers, defendants (and sometimes victims and witnesses) are required to attend at court (Magistrates Courts and Crown Court centres), sometimes making extensive and time-consuming journeys, for hearings that often only last a very short period of time. 42. Judges in the county court frequently conduct telephone hearings entire lists are often dealt with in this manner and the criminal courts are now lagging significantly behind modern practices. Indeed, there has been a marked failure on the part of the criminal justice system to utilise new and far more efficient ways of working. 43. Increasingly, business people and other professionals who are involved in complicated and essential activities meet and work using audio and video links (e.g. business meetings are conducted in this way and surgical operations are carried out remotely) and members of the public, to a significant degree, are now used to communicating via computers or on their mobile telephones. It is acknowledged for the purposes of this Review that trials and sentencing hearings certainly as regards the latter when imprisonment is a possibility will continue to 18 Surinder Kahai, Is Video Conferencing a Good Substitute for Face-to-face Meetings? (2010); Carlos Ferran and Stephanie Watts, Video conferencing in the field: A Heuristic Processing Model (2008) 54(9) Management Science, p

19 The role of IT take place conventionally in a courtroom with all the participants gathered together 19. There are of course already established statutory exceptions where vulnerable witnesses give evidence via a video link or by a section 28 recording Remote hearings enable the Judge, provided he or she has access to the relevant materials, to sit at any court centre or any venue with suitable IT facilities (thereby providing greater flexibility in listing), and they will ease the pressure on courtrooms because the proceedings can be conducted from the Judge s chambers. The advocates will either appear from their chambers or offices, or from a court where they are appearing in other cases. Defendants, victims and witnesses will be able to participate via an audio or video link, and observers (members of the public) could be able to observe the proceedings in a similar way. 45. For a considerable period of time, a significant number of Judges have dealt with administrative issues in cases by communicating with the parties by , receiving submissions in this way; thereafter, the court has been able to issue an ruling. This has proved to have considerable utility and it has not led to any significant difficulties or complaints. It is a means of conducting hearings without the need to bring all those involved to court, and it leads to an unassailable record of what occurred. However, to date, this has only happened on an ad hoc basis, and, as elaborated at 1.4 above, the CJS Common Platform will place this particular means of communication on a more organised basis. 46. I understand that a number of Magistrates Courts 21 are now able to move to a position of digital by default. A national roll-out is likely to require a new operating model of case allocation and listing, and all the relevant agencies will need to become familiar with different ways of working. The implementation of these proposals was explored at a CJS Common Platform video workshop in November 2014, and this work will be developed. 47. It needs to be stressed that as a minimum, there are eight essential prerequisites for remote hearings: i. High quality equipment The equipment must be reliable and the audio and visual quality should be of a high standard: the voices and the faces of those involved need to be clear so that the remote hearing in this critical sense replicates what can presently be seen and heard in court. 19 It may be that other types of hearings also require physical presence in one place: such situations will have to be worked out on a case by case basis. 20 Section 28 of the Youth Justice and Criminal Evidence Act In Kent, Sussex and Surrey. 14

20 The role of IT ii. Digital recording and access The proceedings must be digitally recorded, with easy access provided to the audio and visual archive. In appropriate cases (which might be all save those in which the court is dealing with purely administrative arrangements and where no specific public interest is engaged), consideration should be given to making the record generally available, at least for a limited period. This will address the need for open justice, given remote hearings will otherwise take place in the absence of the public. Technology is available which supports multiple participants at meetings or hearings and in most cases they provide an in-built recording facility. Suitable arrangements will need to be made for hearings involving public interest immunity material. iii. Cases to be queued There needs to be a sophisticated listing system for audio and video hearings, so that cases are queued with the participants waiting online to be called on, in the same way that occurs with cases in court. iv. Involvement of advocates instructed for the substantive hearing For Judges conducting remote hearings, sensible arrangements need to be made to ensure that, to the greatest possible extent, the advocates who are instructed in the case are available to assist the Judge. This will probably require some adjustment to current judicial sitting patterns and a requirement to provide facilities so as to ensure that advocates who are involved in trials are able to participate in these remote hearings without disrupting the trials (i.e. at outside conventional court sitting hours). This will of course be made far more realistic by the provision of such equipment at each court centre. v. Video facilities in prisons The system will be dependent, to a marked extent, on the ability of the prison establishment to provide sufficient video booths so that defendants can be present during the hearing without having to travel to court. Similarly, and quite separately from allowing defendants to witness what happens in court, there must be adequate capacity within the prison estate to ensure that counsel and solicitors are able to conduct remote conferences and consultations in private with adequate security to prevent abuse. Savings which permit conferences such as this will help the prison service (which will not have to devote as much time and attention to providing sufficient time and resource for legal visits) but will also allow defence lawyers to take 15

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